Lowe v. Raemisch

• Decision Date: 25 July 2017
• Docket Number: No. 16-1300,16-1300
• Citation: 864 F.3d 1205
• Parties: Donnie LOWE, Plaintiff-Appellee, v. Rick RAEMISCH, in his individual and official capacities as Executive Director of the Colorado Department of Corrections; and Travis Trani, Warden, Colorado State Penitentiary, in his individual and official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

864 F.3d 1205

Donnie LOWE, Plaintiff-Appellee,

v.Rick RAEMISCH, in his individual and official capacities as Executive Director of the Colorado Department of Corrections; and Travis Trani, Warden, Colorado State Penitentiary, in his individual and official capacities, Defendants-Appellants.

No. 16-1300

United States Court of Appeals, Tenth Circuit.

Filed July 25, 2017

Kathryn A. Starnella, Assistant Attorney General, Denver, Colorado (Cynthia H. Coffman, Attorney General, with her on the briefs), for Defendants-Appellants.

Elisabeth L. Owen, Prisoners' Justice League of Colorado LLC, Denver, Colorado, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal grew out of a state prisoner's alleged deprivation of outdoor exercise for two years and one month. The alleged deprivation led the prisoner (Mr. Donnie Lowe) to sue two senior prison officials, invoking 42 U.S.C. § 1983 and alleging violation of the Eighth Amendment. The district court declined to dismiss the personal liability claims against the two officials, and they appeal.

For the sake of argument, we may assume a violation of the Eighth Amendment. Even with this assumption, the two officials would enjoy qualified immunity unless the denial of outdoor exercise for two years and one month had violated a clearly established constitutional right. In our view, the right was not clearly established. Thus, we reverse.¹

1. Appellate Jurisdiction

Mr. Lowe moves to dismiss the appeal, arguing that we lack appellate jurisdiction. We disagree and deny Mr. Lowe's motion to dismiss.

Though the district court has not entered a final judgment, the collateral-order doctrine creates appellate jurisdiction over certain intermediate rulings on pure issues of law. See Ashcroft v. Iqbal , 556 U.S. 662, 671, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Denials of qualified immunity ordinarily fall within the collateral-order doctrine. Plumhoff v. Rickard , ––– U.S. ––––, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056 (2014).

According to Mr. Lowe, the collateral-order doctrine does not apply because our issue of qualified immunity is fact intensive. We disagree: We are reviewing the sufficiency of a complaint, which involves a pure issue of law. See Iqbal , 556 U.S. at 674, 129 S.Ct. 1937 ; see also Ortiz v. Jordan , 562 U.S. 180, 188, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) (stating that the inquiry regarding what is "clearly established" entails a matter of law).

The district court concluded that the alleged facts precluded qualified immunity. Order at 7, Lowe v. Raemisch , No. 15-cv-01830-RBJ (D. Colo. July 18, 2016) (Dkt. No. 35) ("I find that a reasonable official ... almost certainly did know (and Tenth Circuit cases and many other cases clearly established) that, at the time of Mr. Lowe's confinement, depriving him of outdoor exercise for an extended period of time was likely a violation of his constitutional rights."). The correctness of this conclusion involves a pure question of law.² See Iqbal , 556 U.S. at 672, 129 S.Ct. 1937 (stating that denial of a motion to dismiss, which had been based on qualified immunity, was immediately appealable). Thus, we have jurisdiction under the collateral-order doctrine.

2. Qualified Immunity

The issue of qualified immunity arose in district court, where the court denied the motion to dismiss. For this ruling, we engage in de novo review, viewing the complaint's allegations in the light most favorable to Mr. Lowe. Schwartz v. Booker , 702 F.3d 573, 579 (10th Cir. 2012). Viewing the allegations in this light, we conclude that the two officials are entitled to qualified immunity.

a. Qualified immunity protects all officials except those who are plainly incompetent or knowingly violate the law.

The law is clearly established when a Supreme Court or Tenth Circuit precedent is on point or the alleged right is clearly established from case law in other circuits. Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1248 (10th Cir. 2003). The precedent is considered on point if it involves " ‘materially similar conduct ’ " or applies " ‘with obvious clarity ’ " to the conduct at issue. Estate of Reat v. Rodriguez , 824 F.3d 960, 964-65 (10th Cir. 2016) (emphasis in Estate of Reat ) (quoting Buck v. City of Albuquerque , 549 F.3d 1269, 1290 (10th Cir. 2008) ), cert. denied , ––– U.S. ––––, 137 S.Ct. 1434, 197 L.Ed.2d 647 (2017). Because the prior case must involve materially similar conduct or apply with obvious clarity, qualified immunity generally protects all public officials except those who are " ‘plainly incompetent or those who knowingly violate the law.’ " White v. Pauly , ––– U.S. ––––, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (quoting Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)).

b. The alleged deprivation of outdoor exercise for two years and one month did not violate a clearly established constitutional right.

We have acknowledged the absence of any "doubt that total denial of exercise for an extended period of time would constitute cruel and unusual punishment prohibited by the Eighth Amendment." Housley v. Dodson , 41 F.3d 597, 599 (10th Cir. 1994), abrogated on other grounds by Lewis v. Casey , 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), as recognized in Tucker v. Graves , 107 F.3d 881, 1997 WL 100884, at *1 n.2 (10th Cir. Mar. 6, 1997) (unpublished). Prison officials sometimes disallow exercise outside an inmate's cell and sometimes disallow exercise outdoors (while still permitting out-of-cell exercise). See Apodaca v. Raemisch , No. 15-1454, op. at Part III, 864 F.3d 1071, 1077–79, 2017 WL 3138361 (10th Cir. July 25, 2017) (to be published). Mr. Lowe's claim involves the disallowance of exercise outdoors rather than outside of his cell.

In precedential opinions,³ we have reached four conclusions on the constitutionality of denying outdoor exercise to inmates⁴ :

1. The denial of outdoor exercise could violate the Eighth Amendment "under certain circumstances."⁵

2. The denial of outdoor exercise does not create a per se violation of the Eighth Amendment.⁶

3. Restricting outdoor exercise to one hour per week does not violate the Eighth Amendment.⁷

4. The denial of outdoor exercise for three years could arguably involve deliberate indifference to an inmate's health under the Eighth Amendment.⁸

These conclusions permit reasonable debate on the constitutionality of disallowing outdoor exercise for two years and one month. We have said that denying outdoor exercise could violate the Constitution under some circumstances, but we have not defined those circumstances. Thus, the constitutional inquiry would depend on a case-by-case examination of the totality of circumstances. See Housley , 41 F.3d at 599 ("We recognize, of course, that what constitutes adequate exercise will depend on the circumstances of each case....").

One critical circumstance is the duration of a prisoner's inability to exercise outdoors. See DeSpain v. Uphoff , 264 F.3d 965, 974 (10th Cir. 2001) (stating that the length of time that an inmate is exposed to the conditions "is often of prime importance" under the Eighth Amendment); Craig v. Eberly , 164 F.3d 490, 495 (10th Cir. 1998) (stating that the inquiry under the Eighth Amendment turns in part on the duration of the deprivation). We have sometimes said what is not too long. For example, we have said that limiting outdoor exercise to one hour per week is constitutional. Bailey v. Shillinger , 828 F.2d 651, 653 (10th Cir. 1987) (per curiam). And today we elsewhere hold that qualified immunity applies when prisoners are denied outdoor exercise for roughly eleven months. See Apodaca v. Raemisch , No. 15-1454, op. at Parts III-IV, 864 F.3d 1071, 1077–80, 2017 WL 3138361 (10th Cir. July 25, 2017) (to be published). But what about a denial exceeding two years? We have not squarely addressed a denial of that duration.

Mr. Lowe disagrees, pointing to Fogle v. Pierson , 435 F.3d 1252 (10th Cir. 2006). There, we held that a denial of outdoor exercise for three years could arguably suggest deliberate indifference. Fogle , 435 F.3d at 1259-60. But, in specifically discussing the length of the deprivation, we applied the Eighth Amendment's subjective prong, not the objective prong. Id. at 1260. The objective prong addresses whether the deprivation is "sufficiently serious," and the subjective prong addresses whether the officials acted with a "sufficiently culpable state of mind." Wilson v. Seiter , 501 U.S. 294, 297-98, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).

Here the officials do not challenge the evidence on their state of mind; instead, they argue that the alleged denial of outdoor exercise for two years and one month is not sufficiently serious to implicate the Eighth Amendment. This argument involves the objective prong, not the subjective prong that Fogle addressed with respect to the length of the deprivation.

If " ‘an issue is not argued, or though argued is ignored by the court, or is reserved, the decision does not constitute a precedent to be followed.’ " United Food & Commercial Workers Union, Local 1564 v. Albertson's, Inc. , 207 F.3d 1193, 1199 (10th Cir. 2000) (quoting EEOC v. Trabucco , 791 F.2d 1, 4 (1st Cir. 1986) ). With regard to the length of the deprivation, the Fogle court suggested that it was addressing only the issue of deliberate indifference, not the seriousness of a prolonged denial of outdoor exercise. Fogle , 435 F.3d at 1260. In light of the court's description of the issue, prison officials could reasonably infer that the Fogle court had not decided whether a three-year ban on outdoor exercise is sufficiently serious to violate the Eighth Amendment's objective prong. See Belnap v. Iasis Healthcare , 844 F.3d 1272, 1288-89 (10th Cir. 2017) (collecting cases concerning the principle that appellate courts do not decide issues that are not raised). Therefore, Fog...